MATHEW Vs. DEVASSYKUTTY

JUDGEMENT

(1.) The appellant is the defendant in a suit for grant of letters of administration. Plaintiffs 1 to 3 and the defendant are the children of the deceased Porenchu and his wife the 4th plaintiff. According to the plaintiffs respondents, the deceased left a will Ext. Al dated 1-9-1975 devising in favour of the plaintiffs his entire estate. On the basis of the will, the plaintiffs filed petition under S.276 of the Indian Succession Act, 1925 for the grant of letters of administration. The defendant filed a caveat opposing the petition. The proceeding was converted into an original suit. The defendant appellant contended that the will was invalid as the testator lacked testamentary capacity at the time of the alleged execution of the will. The learned Judge, on consideration of the evidence, held that the testator had the necessary testamentary capacity at the time of the execution of the will and the will was, therefore, valid.

(2.) Counsel for the appellant, Shri. P. K. Balasubramanyan, submits that the evidence on record, particularly the testimony of the doctor (DW 1), would indicate that the testator did not have the mental capacity to execute the will and the will relied on by the plaintiffs is, therefore, not valid. Counsel further says that no person in full possession of his mental capacity would have reasonably disinherited his eldest son, as the testator has done in the case of the defendant. Nothing has been left in favour of the defendant under the will, counsel submits.

(3.) Counsel for the respondents, Shri. George K. Varghese, points out that the will clearly indicates why no bequest was made in favour of the defendant. The defendant had been already well provided for by the testator by transfer of properties, to the defendant's son. The extent of the properties so transferred prior to the execution of the will did not justify any further transfer by bequest in his favour. Furthermore the will shows that the first plaintiff (the second son) had paid off debts incurred by the defendant (the first son) and that had been taken note of by the testator. Furthermore, the extent of the bequest made in favour of the plaintiffs, namely, the second son, the two daughters and the wife shows that what each of them received under the will was less than what the defendant himself had received under transfers made by the testator in favour of the defendant's son. Counsel then refers to the testimony of the doctor as well as that of the Sub Registrar and others , and contends that, as correctly found by the court below, the testator was in full possession of his mental faculties and that he executed the will fully conscious of what he was doing. There is force in these submissions.